How Long Can I Wait To Sue My Employer?

This is a question that I am often asked by clients.

The Limitations Act, 2002, S.O. 2002, c. 24 provides that a person generally has 2 years from the day when that person knew or ought to have known that an injury, loss or damage had occurred. There are circumstances where the limitation period is extended beyond 2 years. There are other instances when the limitation period can be deferred. However, they usually do not apply to employment law cases.

In Bailey v. Milo-Food & Agricultural Infrastructure & Services Inc., the Ontario Superior Court of Justice dealt with a motion to dismiss a wrongful dismissal action on the basis that the 2 year limitation period had expired. The employer argued that the employee’s claim was statute-barred because the Statement of Claim was filed on December 21, 2015, more than 2 years after the notice of termination was given to the employee on March 18, 2013. On the other hand, the employee asserted that his claim was brought well within the 2 year limitation period because his employment did not actually end until March 22, 2015.

The motions judge reviewed the leading authorities on this issue, the principles from which can be summarized as follows:

A limitation period commences when the cause of action arises. In a breach of contract, the cause of action arises when the contract was breached. For the purposes of a wrongful dismissal action, the employment contract is breached when the employer dismisses the employee without reasonable notice.

A cause of action accrues and a limitation period starts to run when all of the elements of a wrong exist. Once a plaintiff and a defendant have been identified and a breach of contract has occurred, time will start to run.

Applying these principles, the motions judge concluded that the employment contract in this case was breached when the employee received the notice of termination on March 18, 2013. It was at that point in time that the employee could have determined that the amount of notice was insufficient and could have sued for wrongful dismissal. Instead, the employee refrained from doing so and waited more than 2 years before starting his lawsuit. In other words, time had run out. As a result, the employee’s claim was statute-barred and could not be allowed to continue.

In the end, the motions judge decided this issue in favour of the employer and dismissed the employee’s wrongful dismissal claim.

There are times when it makes sense to wait and hold off on starting a wrongful dismissal action. Perhaps there is an opportunity to negotiate a settlement and avoid the cost of litigation. Perhaps the employee has a good chance of finding a new job, which can guide the course of action to be taken. For employers and employees alike, obtaining legal advice from knowledgeable counsel can be a key component in developing the right strategy to deploy.

This article is intended only to provide general information and does not constitute legal advice. Should you require advice specific to your situation, please feel free to contact me to discuss the matter further.

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